Lawsuit settled in Dudley boy's death on Auburn Mall escalator

Monday

Mar 31, 2014 at 9:40 PMMar 31, 2014 at 9:42 PM

By Shaun Sutner TELEGRAM & GAZETTE STAFF

The family of a 4-year-old Dudley boy who was killed in an escalator accident at the Auburn Mall three years ago has reached a settlement with the Simon Property Group, Schindler Elevator Corp. and Sears, Roebuck and Co., the store where the accident took place, according to the family's lawyer.

Mark DiBona was on a shopping trip on March 11, 2011, with his mother, other family members and friends when an escalator guardrail pulled him through a gap between a plexiglass divider and the escalator and he fell 18 feet onto a display case, striking his head.

He died in the hospital the next day.

The boy's parents, Eric and Laura DiBona, filed a negligence lawsuit in June 2011 in Worcester Superior Court against Schindler, Sears, Botany Bay Construction Co. of Worcester, and the Simon Property Group and its two subsidiaries that own and run the mall.

"The family can never get over this, but it does end this chapter," said the family's lawyer, W. Thomas Smith of the Boston law firm Sugarman and Sugarman. "It resolves the legal matter, which was important to the family."

Mr. Smith said the out-of-court settlement was agreed on within the last two months. He declined to reveal the terms of the confidential agreement.

However, Massachusetts Lawyer's Weekly reported in Monday's edition that Mr. Smith and his associate, Stacey L. Pietrowicz, who also worked on the suit, were the lawyers in an $11.5 million settlement involving a boy who suffered a fatal head injury in a fall from a mall escalator. The case name was withheld.

Jeffrey S. Raphaelson, a personal injury lawyer with practices in Boston and Worcester who settled a $3.4 million suit by the family of a Worcester boy injured on an escalator in China, said a large settlement in this kind of case is not unusual.

Mr. Raphaelson noted that under Massachusetts law, plaintiffs in civil suits can go after punitive as well as compensatory damages, especially if they can prove unusual suffering by the victim and reckless conduct by the defendant.

A spokesman for Sears, Howard Riefs, said in an email: "Sears is pleased that Schindler Elevator Company, one of the largest and most highly respected escalator companies in the United States, which was responsible for installing and maintaining the escalators at its Auburn store, has now reached a settlement with the DiBona family.

"We extend our heartfelt sympathies to the DiBona family and are pleased that this matter has been resolved," the statement added.

Mr. Smith, however, said Sears was a party to the settlement, and with the other defendants, is seeking, through "cross-claims," to recover damages from Botany Bay and John A. Van Deusen & Associates, a New York-based elevator and escalator consulting firm.

Public relations executives for Simon and Schindler did not respond to requests for comment Monday.

The DiBonas did not return a message seeking comment.

Meanwhile, Mark DiBona's death led to increased scrutiny of escalator safety in Massachusetts, Mr. Smith said.

"This event also had repercussions, at least all over the Commonwealth," Mr. Smith added.

The boy's death sparked a crackdown by state public safety officials, including the firing of two escalator inspectors and the disciplining of nearly two-thirds of the state's escalator inspectors for failing to catch similar code violations.

The opening between the escalator's upper handrail and the glass wall on the side of the second-floor down escalator at the Sears store in the mall exceeded the code requirement by 1¼ inch.

After the accident, the state also re-inspected the state's 927 escalators and found that 69 lacked barricades and others were missing top or bottom barricades. Also, about a quarter of the escalators' annual inspections were overdue.

Contact Shaun Sutner at ssutner@telegram.com. Follow him on Twitter @ssutner

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